DerridaandFoucaultOnSovereignty.doc

6 German Law Journal No. 1 (1 January 2005) -

Derrida and Foucault On Sovereignty

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A.  A "Certain Sovereignty"
In his final publication Derrida argues for a rather wide notion of the concept of sovereignty. Sovereigns are not only public officers and dignitaries, or those who invest them with sovereign power – we all are sovereigns, without exception, insofar the sovereign function is nothing but the rationale of all metaphysics, anchored in a certain capability, in the ability to do something, in a power or potency that transfers and realizes itself, that shows itself in possession, property, the power or authority of the master, be it the master of the house or in the city or state, despot, be it the master over himself, and thus master over his passions which have to be mastered just like the many-headed mass in the political arena. Derrida thinks the sovereign with Aristotle: the prima causa, the unmoved mover. It has been often remarked that philosophy here openly reveals itself as political theology. Derrida thus refers to the famous lines of the Iliad[1], where Ulysses warns of the sovereignty of the many: "it is not well that there should be many masters; one man must be supreme – one king to whom the son of scheming Saturn has given the scepter of sovereignty over you all."[2]
This means that all metaphysics is grounded on a political imperative that prohibits the sovereignty of the many in favor of the one cause, the one being, the arche (both cause and sovereignty), the one principle and princeps, of the One in the first place. The cause and the principle are representations of the function of the King in the discourse of metaphysics. Derrida, however, does not only describe the metaphysical overstepping of the boundaries of a political category; as a metaphysical category, sovereignty encroaches on ‘life,' insofar it nominates a power, potency or capability that is found "in every ‘I can' – the pse of the ipse (ipsissimus)"[3]. This power does not only refer to individuals, insofar they are politically active, i.e. as public active agencies or as sovereign pouvoir constituant, but also refers to all which individuals can actually do, without being forced ‘from the outside.' A soon as they are not only subjected to a causality, but on their part turn into a spontaneous cause of subsequent actions, they exhibit a ‘certain sovereignty.' Thus understood, sovereignty is mere liberty, that is, "the authority or power, to do as one pleases: to decide, to choose, to determine oneself, to decide on oneself, to be master, and in particular master of oneself (autos, ipse). […] No liberty without selfhood, and no selfhood without liberty, vice versa. And thus a certain sovereignty."[4]  
Nothing and nobody can escape a sovereignty thus understood, not even deconstruction, the unending challenge of which, as Derrida once again makes unmistakably clear, was to disassociate itself time and again from a sovereignty with which in the last resort it was to inevitably coincide. Even there, where it seems to be impossible, deconstruction has to distinguish between "on the one hand, the compulsion or self-implementation of sovereignty (which is also and no less the one of selfhood itself, of the same, the self that one is […], the selfhood, which comprises – as etymology would affirm – the androcentric power position of the landlord, the sovereign power of master, father, or husband […]) and on the other hand the posit of unconditionality, which one can find in the critical and (please permit me the word) deconstructive claim for reason alike." Insofar deconstruction claims to be "an unconditional rationalism," it is thus being haunted by what Derrida has called the "sovereignty drive." [5]
B.  Sovereignty and Democracy
I would like to pose an objection here. The rather limited political value of Derrida's theory of sovereignty for me seems to lie in its hasty generalization. There is in Derrida no real history of sovereignty, but merely an initial ‘onto-theological' determination which cannot be modified or thwarted by a historical event, since historical differences can play themselves out only in the framework opened up by the initial metaphysical determination. Derrida defines sovereignty as metaphysical and is thus able to carry out its critique as another variant of the deconstruction of the metaphysical heritage. All the historical analyses which Derrida also commences, can thus only confirm what was certain from the very beginning. However, thus they turn out to be mere illustrations of a particular definition, which on its part is not accessible to a historical relativization. All that can happen to sovereignty in the narrower political sense is, according to such a metaphysical analysis, to be transferred and, in the case of democracy, to possibly return to its origin after the expiration of a time limit, only to be transferred anew. Thus, Derrida can claim that "sovereignty is circular, round, it is a rounding," insofar as it rotates according to the conditions of Greek democracy, as it can take "the alternating form of succession, of the one-after-the-other:" today's rulers will be tomorrow's ruled. Such a model of "spheric rotation,"[6] however, does not necessarily have to take the form of an effective return of sovereign power to its point of origin. Instead of a sovereignty that is transferred to and fro between governors and governed, one can think of a speculative variant, according to which the sovereign is envisioned as being endowed with power once and for all by an act of originary authorization. Instead of an alternating rotation of rulers and ruled, we would have the case of a transfer of sovereignty without the possibility of revocation.
Yet, Derrida emphasizes the fact that the interrelation of democracy and sovereignty remains problematic, since philosophic discourses never succeed in abolishing "the semantic indeterminacy at the center of demokratia."[7] There seems to be a limit to sovereignty's capability of effectively coding society in its entirety. Repudiations of democracy in Classic Greek Philosophy, accusing it of a lack of identity and determination with regard to constitutional law, testify to that. Too much "free-wheeling" in democracy, regarded as the most beautiful political order only by those who are, according to Plato, "womanish and childish." [8] Either democracy spins around, following the circle defined by sovereignty, or it loses track, develops without plan and aim, erratically, an "essence without essence,"[9] which can "comprise all kinds of constitutions, constitutional schemes, and thus interpretations."[10] But, it should be asked, is such a democracy a viable alternative to sovereignty, does the ‘force' of a différance manifest itself in it, which differentiates it time and again from all that seeks to identify itself with it? Or is it merely a piece of a philosophical fantasy the function of which is to intervene in a particular war (with democracy, with the assemblies, with rhetoric, with the Sophists), one that is about to invade the polis and to confirm once again (in the name of the kingship of philosophers, or of true monarchy) a model of sovereignty in crisis? Plato's image of democracy parallels his image of art: the insubstantiality and mere mimetic character of both serves their political disqualification. Democracy for Plato is the negative utopia of the politeia, of the politeia in the state of dissolution, guidelessness, and a-nomy.
C.  Tyrants
Up to this point one cannot clearly see the connection between sovereignty and the subject of "rogues" (voyou, rogue), which has given its title to Derrida's last publication. Neither its metaphysical determination, nor its political articulation within the frame of a philosophical theory of democracy open up a dimension of "roguishness" within sovereignty. On the contrary, philosophical discourses treat the absence of sovereignty as an almost unbearable state of unseemly mixtures and deviations from the ideal standard of the politeia, which could be connected to the subject of a-nomy and an-archy – that is: roguishness. A democracy without a sovereign head (Plato) or sovereign cycle (Aristotle), proves to pave the way for tyranny, differing from rightful ‘monarchy' insofar as it is a liminal case of a dissociation of sovereignty and rights, or law. Greek political theory as well as political praxis knows the problem of tyranny as a liminal case of sovereign dominance, transforming the sovereign into an outlaw, with no contractual connection to the citizens, so that they can deal with him like a tyrant.[11] On the other hand, Hieron shows, that philosophers should also be prepared to communicate with tyrants, in order to conjointly search for possibilities of a more ‘just' or measured exertion of his authority. A tyrant does not necessarily have to be killed, he can also be educated. Yet, despite this intensive concern for the phenomenon of tyrannical hubris, a suspicion that sovereignty might be of a fundamental roguish nature is nowhere voiced. Derrida allows for this fact in that he does not touch the subject of tyranny in his study of "rogues."
D.  Silently and Secretly
Derrida's engagement with the "rogues" is motivated by the use of that term in the official statements of the US diplomacy and geopolitics after the end of the Cold War. His text centers on the question of the existence of so-called "rogue states." Derrida asks for the conditions of possibility for such a diagnosis. Who has the right and the possibility to identify certain states as rogue states, and to threaten them with measures that include military force – and this even, as is explicitly stated, in the case that these states have not yet been guilty of a prior violation of International Law, but the willingness for such a violation in the (near) future is only assumed? The identification of states outside the law leads to the paradoxical consequence that those states that feel called to combat, or that let themselves be formally empowered (e.g. by the UN Security Council) to combat, on their part claim the ‘sovereign' right to take measures, even if these measures violate established law. In the ‘exceptional case,' one has to be prepared to violate law in order to restore it. The state strong enough to define and combat rogue states has to be a rogue state itself, insofar he claims the ‘sovereign' right to deviate from the law under particular circumstances (that is, for a certain period of time that seems to be favorable to the cause), to suspend the law, to annul it. The rhetorics of rogue states suggest that it is always only a handful of ‘rotten apples' that violate law and order; fact is: "There are only rogue states, in potentia, or in actu. The state itself is roguish. There are always more rogue states than one thinks." [12] The moment a strategy of foreign policy commits itself to the combat of rogue states, one finds that the term has already "come up against its limits," that its time is already used up, since it promises to localize a threat coming from uncontrollable and widespread weapons of mass destruction, whereas the dynamics of dissemination, and thus: the failure of all those efforts to reserve the atomic privilege to the ‘club' of hegemonic industrial states, has long become visible. The preliminary result of the Iraq War shows, that such weapons are never located on the territory of the state against one is at war with.
In connection with his diagnosis of current politics Derrida sets out anew to a fundamental determination of political sovereignty, which I would like to quote, since it, I think, all too hastily presents itself as a theory of the ‘nature' of the sovereignty, whereas it in fact accommodates a historically datable shift in the relation of sovereignty to other powers and forces. "Silently and secretly, like sovereignty itself," Derrida states the bottom line of his theory of political sovereignty, even though the ‘holder' of sovereignty originally was the one who could achieve his power – a collective "binding" – only by speaking in public, instead of trusting in the silent right of the strongest. The sovereign wards off everything that is reminiscent of death, his office is not to unleash the violence of war, but to found peace by way of a mutual agreement, thus, a contract. The matter-of-factness of Derrida's equalization of sovereignty and violence has to be opposed by the dissimilarity of sovereign and bellicose power-effects and power-operations as established in the context of the Indo-European "three orders" or "three functions." Before I enter this context, of which I want to show that it is the frame for Foucault's genealogy of sovereignty, I want to quote the passage in which Derrida conjures the roguish substance of all sovereignty. The sovereign is a rogue, because he always is at work ‘silently and secretly,' like a criminal – everything he publicly declares is subordinated to his intention, to break the law ‘in good intention,' without getting caught. Thus he makes every possible effort to ‘abruptly' take action at the right moment and to create a fait accompli which even a retroactive jurisdiction cannot undo:
"Silence, disavowal, that is exactly the never appearing nature of sovereignty. [We will see that the opposite is the case for the original nature of sovereignty: to appear, and to act through the light of appearance, F.B.]. That, about which the community has to maintain silence, is last but not least a sovereignty which can only place and assert itself silently, in the unsaid. Even if it rehashes every juridical discourse and all political rhetoric, sovereignty itself (if there is such a thing, in its purity) is always silent in the self-hood of its own moment, which can only be the time of an indivisible instant.
Pure sovereignty is indivisible, or it is not. This all theoreticians of sovereignty have rightly recognized, and that is what gives sovereignty the character of an exception out of pure decisionism, commented on by Carl Schmitt. This indivisibility as a matter of principle withdraws it from collective participation as well as from time and language. From time, from temporalization, to which it is ceaselessly exposed, and thus, paradoxically, from history. Thus, sovereignty is in a certain manner un-historical, it is a contract made with a history contracting itself into the punctiform event of an exceptional decision without temporal and historical expansion. Thus sovereignty also withdraws itself from language, which introduces universalizing collective participation. […] There is no sovereignty without violence, without the force of the stronger, the justification [raison] of which – as the right [raison] of the strongest – consists in its power over ev